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2023 Supreme(Online)(GAU) 5272
PRINCIPAL SEAT AT GUWAHATI
Susmita Phukan Khaund, J
SMTI DURGA DEVI – Appellant
Versus
THE UNION OF INDIA – Respondent
Crl.A./113/2021
For the Appellants/Petitioners: MS. S K NARGIS
For the Respondents: MR. S C KEYAL(SC, NCB)
Procedural lapses in drug seizure cases, such as failure to follow Section 52A of the NDPS Act, can raise reasonable doubt about the accused's possession and guilt.
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 21(c), 29, and 52A - Conviction under NDPS - Accused convicted and sentenced to ten years rigorous imprisonment and fine for possession of morphine. - Search and seizure procedures were not properly followed, breaching Section 52A. - Independent witnesses not examined; procedural flaws created reasonable doubt regarding possession. (Paras 10, 32, 38, 40)
(B) Legal Procedures - Importance of adhering to statutory requirements during drug enforcement operations emphasized. (Paras 31-39)
Facts of the case:
The accused was apprehended on 17.10.2015 with morphine weighing 950 grams during a search operation by NCB. Notices under Section 50 of the NDPS Act were served. The appellant claimed innocence and alleged procedural breaches.
Findings of Court:
Conviction set aside; serious procedural lapses in the investigation required the prosecution to prove possession beyond a reasonable doubt.
Issues: Did the trial court err in convicting the appellant without following stipulated procedures?
Ratio Decidendi: The prosecution's failure to adhere to the mandatory provisions of the NDPS Act concerning evidence and witness examination significantly weakened their case, leading to reasonable doubt.
Result: Appeal allowed; conviction and sentence set aside.
| Table of Content |
|---|
| 1. facts leading to the arrest of the appellant. (Para 2 , 3 , 4 , 5 , 6) |
| 2. arguments presented by the appellant and prosecution. (Para 9 , 10) |
| 3. court's observations on procedural flaws. (Para 28 , 32 , 33) |
| 4. failure of prosecution to prove guilt beyond reasonable doubt. (Para 40) |
| 5. final decision and instructions given to the appellant. (Para 41 , 42) |
JUDGMENT
Date : 19-10-2023
1. Heard Ms. S.K. Nargis, learned counsel for the petitioner as well as Mr. S.C. Keyal, learned Standing Counsel for the NCB.
2. This appeal is directed against the judgment and order dated 24.01.2017, passed by the learned Additional Sessions Judge No. 2, in connection with NDPS Case No. 10/2016, convicting Smti Durga Devi (herein after also referred to as the accused or appellant) under Sections 21 (c)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing her to undergo Rigorous Imprisonment for ten years and to pay fine of Rs. 1,00,000/- with default stipulation.
3. The Union of India and the Intelligence Officer of NCB are arrayed as O.P. No. 1 and 2 respectively. The brief facts leading to this case are that on 16.10.2015, at about 17:05 hours, on a tip off received by Sri Aram Anth Investigating Officer (I/O in short) of Narcotics Control Bureau (NCB for short), a team was formed to conduct a search operation. At about 02:30 hours midnight on 17.10.2015, the team proceeded towards the ISBT. The secret information that three ladies, namely, Durga Devi, Sangita Devi Dahal and Smti Nemneihat Chongloi would be transporting illegal consignment of morphine was reduced to writing and was submitted to the immediate Superior Officer Smti Tulika Morang, Superintendent of NCB (PW-3). The search party approached two independent witnesses, namely Ripon Kalita and Pragya Kalita and requested them to be witnesses to the search and seizure. After some time, the informer (secret informer) identified the three accused persons, who were approached by the team. The team disclosed their identity and requested the accused to cooperate with the search. The three accused disclosed their names as Durga Devi-appellant herein, Sangita Devi Dahal and Smti Nemneihat Chongloi. A temporary enclosure was made with the help of a bed-sheet for the purpose of carrying out the search operation.
4. Notices were served under Section 50 of the NDPS Act to the accused persons and the contents of the notices were explained to them. The accused opted out to be searched in presence of any Gazetted Officer or a Magistrate and allowed the female team member to search them. During personal search, no contraband was recovered but one black colorued Samsung mobile, one Airtel SIM and voter ID card, and cash worth Rs. 400/- was found with the present appellant. Mobile Phone, Sim Card, Copy of Aadhar Card, cash of Rs. 500 and 600 were recovered from the other accused persons. The appellant was found carrying one blue coloured handbag, which was searched and brown coloured powdery substance, suspected to be contraband, was found inside the bag. The powdery substance was inside a transparent polythene bag. A small quantity of the powder was tested using a Drug Detection Kit yielding a positive result for morphine.
5. The accused also admitted that the powder was morphine. The polythene bag containing the powdery substance was weighed with the help of a digital weighing machine and the gross weight was found to be 950 grams. The suspected morphine powder and the other articles recovered from the possession of the accused as well as the appellant were seized in presence of two independent witnesses and two samples of 5 grams each were drawn from the contraband and packed in Polythene packets and kept inside an envelope and the remaining seized suspected morphine was sealed with the NCB brass Seal No.1 and properly labelled after the signatures of the witnesses, accused persons and the Seizing Officer were taken. After completion of seizure process notices were iss
